By Mark Bush and Samantha Steelman

The Kentucky Supreme Court rendered its opinion in Toler v. Oldham County Fiscal Court (2021-SC-0356-WC) on June 16, 2022. The central issue in the case was whether a medical report from a doctor not licensed to practice in Kentucky was admissible evidence in a Kentucky workers’ compensation claim.

Employee sustained a work-related injury to his left knee on January 16, 2018. Employer filed a report prepared by a physician not licensed in the Commonwealth of Kentucky.   Employee objected to the report, arguing that the report entered as evidence was prepared by an individual who is not a “physician” as defined by KRS Chapter 342, Kentucky’s workers’ compensation statute, because he is not licensed in Kentucky.  Employee asserted that the report was inadmissible as evidence since the practitioner was not a “physician” per the statute.

According to KRS 342.0011(32), “physician” means physicians and surgeons, psychologists, optometrists, dentists, podiatrists, and osteopathic and chiropractic practitioners acting within the scope of their license issued by the Commonwealth. The statute also contains a phrase stating, “unless the context otherwise requires.” Generally, the Kentucky Rules of Evidence must be followed in all proceedings before an Administrative Law Judge, except as varied by statute or regulation (KAR 25:010). One variance provided for in KAR 25:010 is that upon notice, a party may file evidence from two physicians in accordance with KRS 342.033, either by deposition or medical report, which will be admitted into evidence if an objection is not filed. KRS 342.033 provides in part that a party may introduce direct testimony from a physician through a written medical report, and the report will become part of the evidentiary record, subject to the right of an adverse party to object to the admissibility of the report.

In Toler, the Supreme Court held that the doctor who submitted the report did not meet the statutory definition of “physician” under KRS 342.0011(32), and the report was therefore inadmissible and should not have been considered as evidence. The Court reasoned that the statute’s prefatory phrase means that the provided definition of “physician” must be applied unless the context in which it is found compels a different definition. The Court explains that in this case, the context is the introduction of direct testimony through a physician’s report. While the Administrative Law Judge found that this context should permit the expansion of the definition of “physician” to include individuals who do not have a Kentucky medical license in order to widen the pool of physicians qualified to render medical opinions in workers’ compensation claims, the Court disagreed, stating the legislature may opt to widen this pool in the future, but the Court is confined to the plain statutory language. The statute clearly states “acting within the scope of their license issued by the Commonwealth” (KRS 342.0011(32)). Thus, only physicians licensed in Kentucky may provide such evidence. 

The Court did make a clear distinction that this standard does not apply to treating physicians, as KRS Chapter 342 is clear that an employee is free to choose his or her own treating physician. Thus, it is permissible for a treating physician not licensed in Kentucky to provide evidence on behalf of the Employee.

The Court’s opinion in Toler will likely have a number of potential implications that affect the way workers’ compensation claims are handled immediately and going forward. The ruling applies to all claims, no matter whether they are pre-litigation, in litigation, or post-litigation. Thus, immediate steps need to be taken to ensure your claims are being handled appropriately and that any medical opinions would be admissible going forward.

  1. Make sure you are securing Kentucky licensed physicians for all Utilization Reviews, Records Review, IME’s and any medical opinions which may be considered as evidence;
  2. Make sure you are advising any third party vendors that handle medical reviews that they should only send them to Kentucky licensed physicians (if your vendors are not aware of the Supreme Court decision, they will likely continue to “assign” UR’s to doctors not licensed in Kentucky);
  3. Contact your local counsel to discuss “next steps” on claims that are in litigation or already have reports but are not in litigation at this time in you have questions. We can work with you on a case-by-case basis to determine if depositions need to be taken or new reports should be obtained.

At this juncture, it remains to be seen how all this will play out.  Any changes will require statutory alteration from the Legislature, which will not be forthcoming in the near future. In the meantime, be assured we are working with physicians to establish best practices for handling this new development.

If you would like a copy of the Toler decision or have any questions with respect to its potential implications, please contact a member of Reminger’s Workers’ Compensation Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.  THIS IS AN ADVERTISEMENT

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